Statutes Amendment (Attorney-General's Portfolio) Bill

by Vickie Chapmanon September 05, 2018

Second Reading

I wish to make a few observations in light of some matters raised by the member for Ramsay. Before I do that may I thank her for indicating general support for the amendments proposed in this bill on multiple matters. I also thank my colleagues, the members for Kavel and Heysen respectively, for their contribution and continued interest in all matters relating to the Attorney-General's law reform. I find it a valuable addition to have fresh eyes on a number of these things, and I thank them for their diligent work.

The member for Ramsay, on behalf of the opposition, has indicated three areas of anticipated amendment and some desire to have that agreed to. Firstly, I will address the South Australian Civil and Administrative Tribunal and the issue in relation to applications for review and who should hear them. The SACAT was established some years ago now by former attorney-general Rau presenting a bill to the parliament for this to occur. I think we were the last jurisdiction in Australia to have an administrative tribunal but it started with the second bill transferring residential tenancy disputes and guardianship board matters to it.

From there it has now received a number of jurisdictions and is about to get a whole lot more—a relatively small number but some matters in relation to valuation and freedom of information. These are all matters now before SACAT.

Over the course of the last three or four years, especially when the last bill came to the parliament, I asked the former attorney-general, 'Is there a sufficient resource in SACAT to actually absorb this extra workload?' Everything was fine, and he then subsequently announced that he was going to populate the positions in relation to SACAT under a new structure. From its inception, its president was a Supreme Court judge half-time, Justice Parker, and the other half of the time he did his general duties as a Supreme Court judge.

I think from memory the District Court judge at the time, District Court Judge Cole, was a quarter-time member of the tribunal, and again her duties otherwise were, I think from memory, in the general District Court. She may have been in the ERD Court, but in any event she had other duties. Then, of course we had a number members of the tribunal who did, principally, the work in relation to guardianship and tenancy dispute matters.

In the last year or so the government of the day, the former government, appointed Justice Judy Hughes, former crown solicitor, to the Supreme Court and made her a full-time Supreme Court Judge, President of SACAT, but discontinued District Court Judge Cole's role. So, effectively, they picked up some extra role with the presidency—a Supreme Court judge—but lost their deputy president, the District Court judge.

Again, I made inquiry when we were doing the last tranche of jurisdictions to be transferred to the former attorney, to say, 'How is this entity going to cope? The reply was, 'They are getting this extra capacity.' Since coming into government, I have met with Justice Hughes, who is an impressive leader of the SACAT and a justice of the Supreme Court, and I have also inquired of her whether there is any problem that she anticipated in absorbing these extra jurisdictions with the workforce she has. I have had every indication from her that that will not be a problem.

She did ask that any transferring or proclamation to actually institute these new jurisdictions that have come to her not take place until next year because they are actually physically in the process of moving the former guardianship board applications from the Collinswood property, the ABC building, into the city, and geographically they need to make some structural changes, so 'Please don't do anything quickly because we need to attend to that, and we are doing that in the latter part of this year.' It is all going according to her expectation, and I thank her for her leadership in that regard.

So it is a little bit puzzling to me that the opposition would say, 'We think that you need to be able to include in here a deputy president.' We simply do not have one, and the former attorney-general said that we do not need one. I have not had any requests from anyone, particularly the president, that she needs one. I can say to the member for Ramsay that we are not in a hurry to rush out and give a tribunal or court extra judges or deputy presidents when they have not even asked for them.

I just find it a little bit puzzling. This has come a bit out of left field here. By all accounts, the people running the show say they do not need it, so I am not about to do it. It seems a little pointless having legislation to cover that. The president, therefore, undertakes the review process within this tribunal, and by all accounts she is doing a good job and not asking for any change.

The second matter that was raised was the question of the appointment of the reviewer of ICAC, who also has these other roles under the Surveillance Devices Act and also the Telecommunications (Interception) Act. I recall recently reading the annual reports from His Honour, former judge Kevin Duggan QC in relation to these areas. He has completed them, and I may have even tabled them this morning, but certainly they are on their way and it is a job that he does. He also has the role of reviewer of the Independent Commissioner Against Corruption and their operations.

My advice is that this is not really just to save paperwork; this is a process which currently occurs, as I understand it, as a matter of practice. Therefore, we are aligning the legislation with current practice. When these things are identified as appropriate to bring to the attention of the Attorney-General, I understand that is exactly what they have done and have said, 'This is what we have been doing anyway.' However, it ought to have the same compliance in all the pieces of relevant legislation, and that is what we are tidying up. As I said, we are not doing it to save paperwork; we are doing it to ensure that the process is accommodated in an approved legal form.

Finally, in respect of the Training Centre Review Board's annual reports, I can honestly say I am stunned at this proposal. This is not because I would not have liked to see an annual report for 2017-18 from the Training Centre Review Board; in fact, I have been begging to have one of these for years. Victoria has been a leading state in this area, and I have found it quite instructive over the years, particularly when I have had responsibility for juvenile justice on behalf of the then opposition, to read the Victorian training review board's annual report. It was quite enlightening in relation to how they were managing our youth—generally aged between 10 and 18 years, although sometimes they are kept in youth detention facilities a little bit past the age of 18 if they are immature or likely to finish their sentence in a short time, etc.

I found that quite helpful, and I was always puzzled as to why we received a Parole Board report—the review body for adult prisoners—but we did not receive anything for children. This is supposed to be one of our priorities. I am a bit concerned as to why we have never had one, especially as the member for Ramsay is a former minister covering youth justice. It just seems astounding. Nevertheless, my plaintive pleas fell on deaf ears and we were not able to have one.

When issues arise, such as with the Don Dale Youth Detention Centre in the Northern Territory—the concerns raised about the treatment of juvenile offenders in that facility hit the headlines. This is why I think it is so important that these agencies (in this case, the Parole Board for juvenile offenders) provide a continuous report, aside from all the royal commission we have into these things. Providing us with annual reports is one way of doing that.

I recall asking the former government (I am not sure whether it was the member for Ramsay or her predecessor) whether there were activities in our youth detention centres—our children's prisons—similar to what we were seeing on our television screens at the Don Dale centre. Were there allegations, for example, as to whether spit hoods were being used for the purposes of calming and managing residents at these training centres? Ultimately, it was identified that the answer was yes. From memory, it appeared to be 20 or 25 times a year. I was subsequently informed that this was multiple use on one resident. In other words, 25 children had not been administered spit hoods; it may have been two or three children but they may have had to use them multiple times for the behavioural management of these residents.

The spit hoods were not treated as spit hoods in South Australia in the same way as the Northern Territory—theirs was an apparatus worn over the head, designed to stop the wearer from being able to spit or bite their gaoler as such and, therefore, to be a protective mechanism for those who were trying to manage the resident in the facility.

But they were different in South Australia apparently because, whilst the spit hood was placed over the head, there was a slot, or at least an area of transparency, where the eyes were. It sounds a bit like a burqa or something where you can actually see through the apparatus and, therefore, they were not to be seen as such a draconian piece of equipment, which was like a bag over the head of a child.

Somehow or another that was supposed to make me feel more comforted by the fact that our children in South Australia were actually having this administered to them. I was not, I can tell you, and I made further inquiry about it. But if we had had annual reports from our children's training centres, that is, our children's prisons' parole board review people, we would have had some idea about what the hell was going on and not end up with a situation where we are left in the dark about what potentially could be totally unacceptable and probably in breach of human rights conduct in the security of children in these training centres.

Finally, after getting into office, I was able to say, 'Look, I think we do need to have some accountability here.' We have not had a royal commission into our children's prisons down here and I hope—I only hope—that the sort of conduct that has been identified as happening in the Northern Territory has never happened here. I do not know the answer to that but I make this point: at the very least, whoever is responsible for these children has to give us a report on an annual basis and, under this law, which I am asking the parliament to support, they will be required to do so. So it is very important to me that we pass this legislation and ensure that those reports are made and prepared.

That is why I find it so stunning to find that the opposition is now saying, 'We are going to agree to this. We think this is, presumably, a good idea, but we not only want you to do it now for the future but we want you to make them do a report from last year.' I can tell you that I have never been asked for legislation to impose an obligation to prepare reports retrospectively—never.

Furthermore, I have never, to the best of my knowledge, ever asked the former government to do it. One of the practical problems when you impose an obligation to do something retrospectively is that there is every possibility that the information—which we are now requiring be provided in this legislation if it is passed—may not have even been collated.

I do not know the answer to that, but what I do know is that it would be entirely improper for us to go back and ask a board to retrospectively prepare a report and provide information to us, of which they had no obligation to during that time. I am happy to ask them. The chair of the review board is the Chief Judge of the Youth Court, and I am happy to ask the judge to consider whether she thinks she is able to comply with the request of the opposition and provide that.

I think it is unreasonable to make it retrospective, but I will ask her, and if she thinks that she could collate together a report covering this information for last year, even though they had not been on notice to provide it, then I am either happy to report back to the parliament and to the opposition between the houses of this debate to indicate their capacity and willingness to do that.

If that is the case, and they find that to be not an onerous task, then that may well be able to be acceded to, but I am stunned to think, after all these years of not even having a report, when we finally get into government and actually introduce a bill to say, 'This is an important thing for South Australia,' I have the former minister asking me to retrospectively apply it. I can tell you I am stunned.

Nevertheless, I have to be grateful that there seems to have been some acquiescence to the merits of the other matters before parliament. I do appreciate that. I will inquire of Her Honour whether there is a capacity to provide either a report or the data that is outlined in the proposed section 40 for an annual report for the 2017-18 year. However, about the other matters, I hope I have satisfied the opposition. They really are proposals that are—I would not say misguided—either inappropriate or unnecessary.